High Court · 2025

learned counsel for the respondent- who has also filed an impleadment application on behalf of the grandson of the original tenant and perused the material available on record.

2. The aforesaid impleadment applications bearing no. 105750 of 2019 and IA No. 13 of 2024 are taken on record and are allowed.

3. The petition has been filed by the petitioner challenging the order declaring vacancy passed on 19.02.2019.

4. From the perusal of the impugned order, it is revealed that the shop in question was under the tenancy of one Sri Vidyoparjan Shastri and after his death, the tenancy devolved on Sri Yogesh Kumar Dwivedi, Sri Lokesh Kumar Dwivedi, Sri Keshav Kumar Dwivedi, and Sri Keshav Dutt. It also bears from the record that the said person on whom the tenancy devolved had given a letter on

14.09.2005,

17.10.2005,

23.10.2005 and

13.11.2005, which is in the form of surrender letter declaring that they had vacated the shop in question. Based upon the shop being vacant, an application was filed seeking vacancy of the premises in question under Section 12 of the U.P. Act No. 13 of 1972. Apart from the said surrender letter, an inspection was also got done, wherein one Sri Komal Prasad Tiwari was found to be running a firm in the name of "Komal Vastralaya". It was also recorded that the said person never appeared to record his statement. It is also recorded that in the impugned order that in respect of the said shop three allotment applications were filed. One by Gopal Mishra, the other by Umendra Awasthi and the third by Sri Anil Kumar Tiwari and Sri Komal Prasad Tiwari, who was also found in occupation and were running the firm in the name of "Komal Vastralaya". The authority under the said act after considering the materials as referred above, proceeded to declare vacancy through the impugned order, the said impugned order is under challenge.

5. It has been argued by the Sri Ravi Shankar Tiwari appearing as a grandson of Sri Keshav Dutt Dwivedi that he is still in occupation in the shop in question. He further argues that the shop in question is located in a premises which was sold by the then landlord to a vendor, who also tried to take possession of the shop in question forcefully, for which, an FIR was also lodged and the criminal case is said to be pending. He further argues that in the sale deed executed by the landlord in favour of person, who is represented by Sri Piyush Kumar Agarwal, wherein it was admitted in the sale deed that the shop in question was also transferred to the purchaser despite the fact the seller did not have the actual physical possession of the shop. He further argues that after the FIR in question was lodged, an application for rectification of the deed was moved only to cover the illegal acts of the subsequent purchaser, who was trying to take forceful occupation in the shop in question. He further argues that the letter executed by the grandfather Sri Keshav Dutt Dwivedi and relied upon the impugned order are forged and fabricated documents. He further argues that the Lawyer who was representing Sri T.C. Dwivedi, subsequently appeared on behalf of Sri Komal Prasad Tiwari, which clearly reflected the conflict of interest.

6. In the light of the said, it is proposed to be argued that the impugned order of declaring vacancy is bad in law and is liable to be set aside.

7. The said argument has been adopted by the counsel for the petitioner.

8. Sri Piyush Kumar Agarwal, learned counsel, on the other land appearing on behalf of the subsequent purchaser of the property in question draws my attention to the documents, which led to declaration of vacancy which included the letters of surrender issued by the four co-tenants. He further argues that on the inspection of the shop in question not only Sri Komal Prasad Tiwari, who was not an allottee of the shop was found in occupation, the firm in the name and style of "Komal Vastralaya" was being run. He further argues that in terms of the mandatory provisions of Section 12, no person can occupy a shop without a valid allotment order or a release in his favour and in the event of a shop being in occupation of a person not authorized, Section 12 of the Act prescribes for declaration of vacancy as has been done and as such, no error can be found with the order declaring vacancy. He prays that the present writ petition deserves to be dismissed.

9. It is not in dispute that no order of release or allotment has been passed till date in favour of any person.

10. Considering the submission made at the Bar, a perusal of the impugned order reveals that the vacancy was declared by the Prescribed Authority on the basis of evidence which included a letter of surrender, a report of the Inspector, and also the statement made by the counsel representing the tenant, who had died during the pendency of the proceedings. In the entire writ petition, there is no allegation to the effect that surrender letter relied upon by the Prescribed Authority was either forged or fabricated. In the absence of pleadings, the submission of Sri Ravi Shankar Tiwari, learned counsel, that the said documents are forged and fabricated cannot be decided by this Court. Even otherwise, the stand taken by the legal heirs of the main tenant cannot be contrary to the stand taken by the tenant, which in the present case is in the form of letter of surrender.

11. Considering these facts and also the fact that the letter of surrender was produced before this Court in the original record which has been perused, there is no reason to interfere with the impugned order. The writ petition lacks merit and is accordingly dismissed. The original record shall be transmitted back to the authority from which it was received. Order Date :- 29.1.2025 Arun ARUN KUMAR ARUN KUMAR High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

learned counsel for the respondent- who has also filed an impleadment application on behalf of the grandson of the original tenant and perused the material available on record.

2. The aforesaid impleadment applications bearing no. 105750 of 2019 and IA No. 13 of 2024 are taken on record and are allowed.

3. The petition has been filed by the petitioner challenging the order declaring vacancy passed on 19.02.2019.

4. From the perusal of the impugned order, it is revealed that the shop in question was under the tenancy of one Sri Vidyoparjan Shastri and after his death, the tenancy devolved on Sri Yogesh Kumar Dwivedi, Sri Lokesh Kumar Dwivedi, Sri Keshav Kumar Dwivedi, and Sri Keshav Dutt. It also bears from the record that the said person on whom the tenancy devolved had given a letter on

14.09.2005,

17.10.2005,

23.10.2005 and

13.11.2005, which is in the form of surrender letter declaring that they had vacated the shop in question. Based upon the shop being vacant, an application was filed seeking vacancy of the premises in question under Section 12 of the U.P. Act No. 13 of 1972. Apart from the said surrender letter, an inspection was also got done, wherein one Sri Komal Prasad Tiwari was found to be running a firm in the name of "Komal Vastralaya". It was also recorded that the said person never appeared to record his statement. It is also recorded that in the impugned order that in respect of the said shop three allotment applications were filed. One by Gopal Mishra, the other by Umendra Awasthi and the third by Sri Anil Kumar Tiwari and Sri Komal Prasad Tiwari, who was also found in occupation and were running the firm in the name of "Komal Vastralaya". The authority under the said act after considering the materials as referred above, proceeded to declare vacancy through the impugned order, the said impugned order is under challenge.

5. It has been argued by the Sri Ravi Shankar Tiwari appearing as a grandson of Sri Keshav Dutt Dwivedi that he is still in occupation in the shop in question. He further argues that the shop in question is located in a premises which was sold by the then landlord to a vendor, who also tried to take possession of the shop in question forcefully, for which, an FIR was also lodged and the criminal case is said to be pending. He further argues that in the sale deed executed by the landlord in favour of person, who is represented by Sri Piyush Kumar Agarwal, wherein it was admitted in the sale deed that the shop in question was also transferred to the purchaser despite the fact the seller did not have the actual physical possession of the shop. He further argues that after the FIR in question was lodged, an application for rectification of the deed was moved only to cover the illegal acts of the subsequent purchaser, who was trying to take forceful occupation in the shop in question. He further argues that the letter executed by the grandfather Sri Keshav Dutt Dwivedi and relied upon the impugned order are forged and fabricated documents. He further argues that the Lawyer who was representing Sri T.C. Dwivedi, subsequently appeared on behalf of Sri Komal Prasad Tiwari, which clearly reflected the conflict of interest.

6. In the light of the said, it is proposed to be argued that the impugned order of declaring vacancy is bad in law and is liable to be set aside.

7. The said argument has been adopted by the counsel for the petitioner.

8. Sri Piyush Kumar Agarwal, learned counsel, on the other land appearing on behalf of the subsequent purchaser of the property in question draws my attention to the documents, which led to declaration of vacancy which included the letters of surrender issued by the four co-tenants. He further argues that on the inspection of the shop in question not only Sri Komal Prasad Tiwari, who was not an allottee of the shop was found in occupation, the firm in the name and style of "Komal Vastralaya" was being run. He further argues that in terms of the mandatory provisions of Section 12, no person can occupy a shop without a valid allotment order or a release in his favour and in the event of a shop being in occupation of a person not authorized, Section 12 of the Act prescribes for declaration of vacancy as has been done and as such, no error can be found with the order declaring vacancy. He prays that the present writ petition deserves to be dismissed.

9. It is not in dispute that no order of release or allotment has been passed till date in favour of any person.

10. Considering the submission made at the Bar, a perusal of the impugned order reveals that the vacancy was declared by the Prescribed Authority on the basis of evidence which included a letter of surrender, a report of the Inspector, and also the statement made by the counsel representing the tenant, who had died during the pendency of the proceedings. In the entire writ petition, there is no allegation to the effect that surrender letter relied upon by the Prescribed Authority was either forged or fabricated. In the absence of pleadings, the submission of Sri Ravi Shankar Tiwari, learned counsel, that the said documents are forged and fabricated cannot be decided by this Court. Even otherwise, the stand taken by the legal heirs of the main tenant cannot be contrary to the stand taken by the tenant, which in the present case is in the form of letter of surrender.

11. Considering these facts and also the fact that the letter of surrender was produced before this Court in the original record which has been perused, there is no reason to interfere with the impugned order. The writ petition lacks merit and is accordingly dismissed. The original record shall be transmitted back to the authority from which it was received. Order Date :- 29.1.2025 Arun ARUN KUMAR ARUN KUMAR High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench